The first speaker recalled that the ICRC had received, by virtue of Resolution 1 of the 31st International Conference of the Red Cross and Red Crescent (2011), the invitation to pursue further research, consultation and discussion in cooperation with States to strengthen the protection of persons deprived of their liberty in non-international armed conflicts. He highlighted the four areas that are currently the object of discussions, which are: 1) the material conditions of detention; 2) the needs of particularly vulnerable groups in detention; 3) arbitrary deprivation of liberty and, 4) questions related to transfer of detainees. For each of these areas, gaps in IHL have been identified and difficult questions have arisen, such as: should the same standards apply in all types of detention? How does one articulate comprehensive standards including new categories of vulnerable persons? The ICRC is looking for answers to these various difficult questions in further consultations with States, with the objective to propose meaningful recommendations at the next International Conference.

The second speaker focused on the question whether international human rights law could serve to fill the gaps in IHL concerning detention in non-international armed conflicts. In that respect, it was recalled that human rights law does not generally bind non-State actors; with the exception that where non-state armed groups exercise control over territory and have governmental functions, they can be said to have human rights responsibilities. Human rights law remains however important when it comes to detention by States. It was argued that human rights mechanisms, such as treaty and non-treaty mechanisms could primarily serve to reinforce but not to add to IHL rules. In addition, when the right to individual petition is used, human rights bodies could clarify and possibly fill the gaps in IHL. In brief, human rights was pictured as not being the solution to everything but, at the same time, as not being useless. Human rights bodies can enforce IHL. They can also clarify IHL, but if – and only if – they take into account the applicability of IHL.

During the third and last part of the first session, the capacity of non-State actors to apply IHL in practice was looked at. In this respect, the challenges faced by non-State armed groups were seen as important as regards not only the actual detention facilities, but also possible ICRC visits or standards for the provision of food, water and shelter. It was then highlighted that domestic law might pose obstacles to the detention by organized non-State armed groups, leaving such group with the “easier” alternative of killing the enemies. It was argued that in order to provide incentives to non-State actors to choose for detention rather than killing, the possible negative legal consequences should be removed. In conclusion, it was agreed that in whatever way the gaps in IHL are clarified or filled, IHL should remain practically applicable.

The second panel raised a number of fundamental issues around sexual violence in armed conflicts. Discussions showed that sexual violence is a universal problem as it has been persistent over time, is widespread in non-international armed conflicts and while its primary victims are women and girls, it also affects men and boys. While progress has been achieved in the elaboration of norms prohibiting sexual violence and awareness has been raised about the importance of an unconditional prohibition, the universal eradication of sexual violence still faces numerous challenges in terms of prevention, redress for the damage suffered and prosecution.

The second speaker dwelled on the criminalization and prosecution of sexual violence at the domestic level and presented the UK Preventing Sexual Violence Initiative. In this context, it was argued that rape and serious sexual violence are grave breaches and therefore must be prosecuted on the basis of universal jurisdiction.

Finally, the controversial issue of the right to abortion for victims of rape was raised. Discussions pointed to a lack of access to safe abortion due not only to the legal status of abortion but also and mainly to practical, sociological and administrative barriers. It was noted that so far neither IHL treaties nor human rights law provide for a “right to abortion” for victims of rape. However, a number of IHL and human rights law provisions are relevant. In particular, it appeared that in countries where abortion is allowed for women who become pregnant as a result of rape, victims must have access to it. Human rights practice tends to consider moreover that States should allow abortion in case of rape, although States laws are very diverse in this respect. Finally, it was highlighted that the ICRC is committed to ensure that victims of sexual violence have access to comprehensive health care, including access to safe abortion in compliance with applicable law.

The third session focussed on vulnerabilities in hostilities looking at specifically the issue of how the delivery of health care in general – and the wounded, sick and shipwrecked in particular – can be endangered by hostilities. Starting with the simple question of why is it that the wounded and sick, as well as medical personnel, are being attacked so often, the session explored a number of difficult questions. The basic idea of Henry Dunant which is to provide assistance to wounded and sick military personnel, including those belonging to the enemy, was pictured as ambitious since treating a wounded or sick enemy combatant can be considered as making him or her fit for combat again. The panel and the audience agreed on the importance of holding to this basic idea which allows IHL to serve its purpose to preserve a minimum of humanity in armed conflict situations. Altough some lessons learned from conflicts in Iraq and Afghanistan were, in a way, reassuring as they showed very well how military commanders can ensure protection beyond the minimum rules they have to respect, experiences made in other contexts, i.e. Syria, show the whole extent of the problem. Issues such as follow-up strikes, the notion of acts harmful to the enemy versus direct participation in hostilities or the lack of respect of the protected objects displaying the emblems of the red cross or the red crescent during hostilities in some situations have provoked lively debates. No doubt that the ICRC project called “health care in danger” and in particular the two remaining workshops on military practice and on the normative framework will benefit from yesterday’s discussion.

I will not recall the discussions of the last panel as the debates are still fresh in your mind. But I briefly come back to the first morning session that was devoted to the recruitment and other association of children with armed forces or armed groups. The first speaker highlighted that IHL clearly prohibits the recruitment of children and their participation in hostilities. Human rights treaties, notably the UN Convention on the Rights of the Child and its Optional Protocol on the involvement of children in armed conflicts, then complemented these IHL provisions. Enforceability of these prohibitions has then been ensured by the criminalization of their breach, under both treaty and customary law. Despite the differences between the standards under IHL, human rights law and international criminal law, the fragmentation between these different bodies of law tend to diminish.

The second speaker presented a critical analysis of the Lubanga case before the ICC, which is now under appeal. Particular issues that emerged into this case were discussed. For instance, the issue of the continuous nature of the crime of recruitment of children was raised and it was alleged that retention of children into armed forces or armed groups also constitutes recruitment. What amounts to active participation in hostilities for the purpose of article 8 of the ICC Statute was also discussed. In this respect, it was suggested that the large definition of active participation in hostilities adopted by the International Criminal Court should be understood in light of the rationale underlying the crime and the fact that Additional Protocol II, for instance, prohibits both direct and indirect participation in hostilities of children. An appeal was made to put further efforts to ensure that States introduce effective legislation, criminalize and prosecute recruitment and use of children in hostilities at the national level. Last but not least, the importance of prevention of recruitment and use was raised in discussions because the best way to avoid that children join armed forces or armed groups is to provide them with alternatives.